WENDY MURPHY: College can be a dangerous place for women

Saturday

Apr 19, 2014 at 4:00 AM

By Wendy Murphy

COMMENTARY – It’s “Sexual Assault Awareness Month” so let me make you aware of a few things you probably don’t know.1. Women are more likely to be sexually assaulted in college than in the real world, or even in the hyper-masculine environment of the military.

2. Ivy league and elite schools are the worst because they have the most entitled males.

3. Women are more likely to report sexual assaults in the real world, and in the military, compared to college.

4. The real world and military justice systems are exponentially more likely than campus officials to hold offenders accountable.

With those facts in mind, consider this:

5. A new federal law called SaVE took effect on March 7 that gives schools even more authority to mishandle sexual assaults and other forms of gender-based violence on campus. A federal lawsuit was recently filed to stop SaVE on the grounds that it violates women’s equal protection and due process rights.

Among other problems, SaVE will cause extreme undercounting and inadequate redress of sexual assaults because only “reported” incidents will matter and only 5 to 12 percent of assaults are reported. By allowing schools to count only “reported” matters, incidence rates will appear to plummet even as actual numbers skyrocket.

SaVE also overturns important guidance released in a 2011 “Dear Colleague Letter” (DCL) by the Office for Civil Rights at the Department of Education. The DCL was issued after Harvard and Princeton got in trouble in fall 2010 (my cases). OCR opened investigations against both schools because their sexual assault policies violated Title IX. I sent both cases to OCR headquarters in late 2010 and asked them to issue some form of “global guidance” for all schools because the problems at Harvard and Princeton were systemic in higher education.

OCR agreed and issued the DCL in April 2011 laying out the steps schools must take in response to violence against women. The DCL addressed all the problems I’d raised about Harvard and Princeton and was widely lauded as an excellent step forward.

Days later, the SaVE Act was filed to overturn the DCL. Advocates eagerly signed on after being told it would “codify” the DCL into federal law, but the good parts were soon removed. When advocates complained, SaVE was tacked on to the Violence Against Women Reauthorization Act, which is a big funding bill. Women’s groups went silent because they needed the money.

Key differences between SaVE and the DCL include:

Before SaVE, schools were required to apply a “preponderance of the evidence” standard (51 percent) when determining whether an incident occurred.

After SaVE, schools can impose a much stricter burden on victims (as high as 95 percent proof).

Before SaVE, schools had to define civil rights violence against women under a uniform federal definition. For example, a rape would result in consequences for the offender if his actions were deemed “unwelcome.”

After SaVE, schools will define violence against women under criminal standards according to the law in the state where the school is located, which means there will be no consequences for rape at most schools unless an offense is deemed “nonconsensual” (much tougher burden than “unwelcomeness”) and involves the use of “force.”

Before SaVE, schools were mandated to provide “equitable” redress for victims of gender-based violence, which meant applying the exact same policies as those that apply to violence based on ethnicity, etc.

After SaVE, “equity” is no longer required. Congress removed the word “equitable” and authorized schools to apply weaker legal protections for women.

After SaVE, schools can delay making a “final” decision for years, until the day of the victim’s graduation, if at all.

SaVE will particularly benefit Harvard, Princeton and UVA. Federal investigations against all three schools have been on hold for years while SaVE was becoming law and SaVE now conveniently renders their past violations suddenly lawful.

Most schools in trouble with the feds for violating women’s civil rights work quickly to change their policies. An arrogant minority go to Congress, instead, and change the law.

Nice to have such power.

Let’s hope it’s the kind of power parents find repulsive when they think about where to send their children to college. Schools that oppose SaVE and refuse to subjugate women should be rewarded with lots of tuition dollars and loud public support from those of us who find it abhorrent that a girl in America is safer not becoming educated and that Harvard, Princeton and UVA think that’s just fine.

Wendy Murphy is adjunct professor of law at New England Law|Boston and a well-known television legal analyst. A former prosecutor, Murphy specializes in the representation of crime victims in civil and criminal litigation. Read more of her columns at wendymurphylaw.com.

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